Colbert v. McDonald

UNITED STATES DISTRICT COURT 6 FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE BOBBY COLBERT, CASE NO. 2:08-cv-00870-RSL 9 Petitioner, v. JIM McDONALD, ORDER GRANTING CERTIFICATE OF APPEALABILITY 12 Respondent.

This matter comes before the Court on the Ninth Circuit Court of Appeals order remanding this case for the limited purpose of granting or denying a certificate of appealability with regards to the undersigned’s recent denial of petitioner’s request to vacate judgment. Having considered the order and the remaining file, the Court finds as follows: In April 2009, the Court denied petitioner’s request for a writ of habeas corpus on the merits. The Ninth Circuit affirmed the dismissal of the petition for writ of habeas corpus on exhaustion grounds. In July 2024, petitioner filed a motion for relief of judgment and judicial notice, requesting that the Court vacate the final judgment in this matter to allow him to pursue a Brady claim: the Skagit County Superior Court has apparently expanded the state court record to include a Washington State Patrol Crime Laboratory Report. The motion to vacate judgment was denied because the Ninth Circuit’s dismissal ORDER GRANTING CERTIFICATE OF was on exhaustion grounds, an issue that is not altered by the potential Brady violation identified by petitioner.

To obtain a certificate of appealability under 28 U.S.C. § 2253(c), a habeas petitioner must make a substantial showing of the denial of a constitutional right.

“Obviously the petitioner need not show that he should prevail on the merits. He has already failed in that endeavor.” Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983). Rather, he must demonstrate that the resolution of the habeas petition is debatable among reasonable jurists or that the issues presented were “adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). Where a petition is dismissed on procedural grounds, the Court must determine whether “jurists of reason” would debate (1) whether the petition states a valid claim of the denial of a constitutional right and (2) whether the district court’s procedural ruling was correct. Slack, 529 U.S. at 13 484.

The Court finds that the rejection of petitioner’s Rule 60 motion on exhaustion grounds may be debatable among reasonable jurists. The certificate of appealability is therefore GRANTED on that issue.

18 Dated this 19th day of September, 2024.

Robert S. Lasnik 21 United States District Judge ORDER GRANTING CERTIFICATE OF